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Letter to the editor

Will net defense let fisherman get away?

The prosecutors hope not. They appeal a judge's ruling on a stowed gill net that was found on a boat with a catch of mullet.

By JIM ROSS
Published May 2, 2005

INVERNESS - Judges and prosecutors don't always agree, but this particular impasse is downright fishy.

The point of contention: a net.

The State Attorney's Office has charged a Homosassa man with possessing more than 50 mullet with a gill net or entanglement net. It's a second-degree misdemeanor.

Prosecutors wanted County Judge Mark Yerman to prohibit the accused from arguing to the jury a particular defense - namely, that a fisherman can't be guilty if the gill net in question was found rolled, folded or properly stowed.

That defense can't be used in this kind of case, prosecutors said.

Yerman disagreed, and on Friday the state appealed.

Now a circuit judge will have to sort it out.

The trouble started in the early morning hours of Dec. 10. Officers with the state Fish & Wildlife Conservation Commission found 274 pounds of mullet and a gill net on Douglas Lee Head's boat, which was off the Citrus coast.

Head, 39, told officers he caught the fish with two nylon seine nets that were on the back of his boat. But those nets were dry and free of marine life and grass, the state said in a legal filing.

Head then opened a net table on the boat, where the officer found a large nylon gill net that was wet and full of fresh sea grass and a small blue crab, the filing said.

The officer also observed that the mullet "appeared to be marked as if they had been caught by a gill or entanglement net," the filing said.

In 1994, state voters overwhelmingly approved a constitutional amendment that sharply limited commercial netting in state waters. The law bans all nets that snag fish by their gills.

On March 21, the state asked the judge to prohibit the defense from telling the jury that, if the gill net is rolled, folded or properly stowed, the defendant cannot be guilty as charged.

Prosecutors said that defense is only allowed for another net-related charge, called "failure to transit."

Yerman denied the state's request, saying the statute allowed for such a defense. The judge then delayed the trial when the state said it wanted to appeal his ruling.

Prosecutors said Yerman didn't follow the law's clear wording and meaning.

"The trial court created a defense to the statute in question where the Legislature clearly intended, based on the plain reading of the statute, not to include such a defense," Assistant State Attorney Deborah B. Ader wrote.

The state wants a circuit judge to reverse the county judge's ruling.

[Last modified May 2, 2005, 01:35:17]